The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge
ORDER RE: THE COURT'S FINDINGS OF FACTS AND CONCLUSIONS OF LAW
On April 14, 2009, the Court and the Jury simultaneously heard Plaintiff's claims brought pursuant to Bivens and the Federal Torts Claims Act ("FTCA"). The trial concluded on April 20, 2009 and the Jury was instructed to decide Plaintiff's Bivens claims. The FTCA claims were left for the Court to decide. The Court, having now heard and considered all evidence and arguments set forth in this trial now FINDS AND RULES AS FOLLOWS:
The Court finds in favor of Defendant United States of America. Plaintiff brings his claims under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. for (1) Assault, (2) Battery, (3) False Arrest, and (4) Intentional Infliction of Emotional Distress. The Court finds that Plaintiff has not met his burden to establish these claims.*fn1
I. THE COURT'S FINDINGS OF FACTS
1. In or about March 1998, Solomon and Lily Tekle, Plaintiff's parents, were under investigation by the Internal Revenue Service - Criminal Investigations Division and the Drug Enforcement Administration for suspected narcotics trafficking and tax-related offenses.
2. As part of the ongoing investigation, Special Agent Thomas Jankowski was responsible for preparing a detailed plan regarding the proper execution of search and arrest warrants on Solomon and Lily Tekle and the Tekle residence located at 19673 Los Alimos Street, Chatsworth, California.
3. In preparing the plan to serve the search and arrests warrants on Solomon and Lily Tekle and the Tekle residence, Special Agent Jankowski took a number of factors into account, including but not limited to the following: (a) the size of the Tekle residence, which was a large, multi-level home with many windows and exits; (b) the six-foot high iron fence fortifying the Tekle residence; (c) Solomon Tekle, a suspected narcotics trafficker, was the registered owner of a 9 MM semi-automatic handgun; and (d) the nature of the crimes for which Solomon and Lily Tekle were being investigated. In addition, based on intelligence and surveillance, it was determined that three children, including Plaintiff, resided in the residence, and that Lily Tekle routinely took her children to school each morning.
4. In preparing the plan to serve the arrest and search warrants, Special Agent Jankowski contemplated the safety of the agents, Solomon Tekle, Lily Tekle, the Tekle children, and any other individuals that might otherwise be present at the time the warrants were served.
5. Among other things, Special Agent Jankowski included special plans intended to minimize the likelihood of the Tekle children being present at the residence during the execution of the warrants. For example, Special Agent Jankowski planned for the arrests of Lily and Solomon Tekle to take place after Lily Tekle had dropped the children off at school, even though this required waiting until 7:00a.m.-8:00 a.m. to execute the search and arrest warrants, and thus posed a greater danger to the agents. As a safety precaution for the children, the plan contemplated the children being out of the house and at school before the parents were arrested.
6. As part of the detailed search and arrest plan, Special Agent Jankowski determined that approximately 20-25 agents would be necessary to safely, effectively and properly execute the search and arrest warrants at the Tekle residence.
7. The approximately 20-25 agents were to be divided into two general groups -- the entry team and the cover team. The entry team, divided into several cells, was responsible for making entry into the sizable Tekle residence, arresting Solomon Tekle, securing any other individuals encountered inside the residence and quickly securing the Tekle residence. The cover team was responsible for providing outside cover around the perimeter of the Tekle residence, protecting the entry team against any internal or external threats, including potential gunfire, securing any individuals encountered on the premises, and taking necessary steps to minimize any potential risk to the agents making entry.
8. The agents were to maintain their entry or cover team roles, as assigned, until the "all clear" had been given, or stated alternatively, until Solomon Tekle was arrested and the house had been secured. Once Solomon Tekle was arrested and the residence was secured, members of both teams were expected to perform their assigned responsibilities in relation to searching the Tekle residence.
9. On the morning of March 23, 1998, following a briefing and staging meeting at a nearby location, and pursuant to the plan devised by Special Agent Jankowski, IRS-CID cover agents deployed around the perimeter of the Tekle residence, while the entry team lined up in their respective cells and prepared to enter the residence, arrest Solomon Tekle and secure the residence.
10. A broadcast was made over a public address system to announce the presence of law enforcement officers, and, at about the same time, Special Agent Jankowski called Solomon Tekle on a cellular telephone, requesting that Mr. Tekle surrender himself at the front door.
11. As the entry team approached the front door of the residence, one of the garage doors opened unexpectedly, and Plaintiff -- at the time a large juvenile, approximately 11 years old and 5'2 tall -- exited the attached garage. Plaintiff spotted the agents, stopped and began to re-enter the home through the open garage door.
12. At the time Plaintiff appeared, the entry and cover team did not know that the individual exiting the garage was Plaintiff or that Plaintiff had remained at home that morning. Although Lily Tekle told this information to the agents who arrested her, it was not relayed to the entry and cover team outside the Tekle home.
13. Specifically, Agent Hawkes did not know that Plaintiff was at home or that the unidentified juvenile outside the garage was Plaintiff.
14. Plaintiff's sudden and unexpected presence created a risk to himself and to the agents present at the Tekle residence. More specifically, Plaintiff had placed himself directly between the line of armed cover agents facing the house and the house itself, which contained a potentially armed suspected narcotics trafficker. In doing so, Plaintiff had placed himself within an extremely sensitive and dangerous zone where he could have been caught in a potential crossfire or caused danger to or interference with the entry team's access into the house. In addition, his attempt to re-enter the home created the risk of a potential hostage situation.
15. Agent Hawkes was assigned to cover the portion of the house consisting of the garage through which Plaintiff exited.
16. Out of concern for Plaintiff's safety, as well as the safety of the other agents at the scene, Special Agent David Hawkes-- in split-second fashion and consistent with his training -- promptly assessed the threat and quickly proceeded with generally accepted law enforcement practices and techniques: (1) Special Agent Hawkes verbally ordered Plaintiff to his knees, and Plaintiff obeyed. (2) An agent opened the gate with a remote device provided by Lily Tekle during her arrest. (3) Special Agent Hawkes holstered his weapon, walked through the open gate, and approached Plaintiff. (4) With his weapon holstered, Special Agent Hawkes handcuffed Plaintiff, checked to ensure that the cuffs were not too tight by placing his little finger between Plaintiff's wrist and the cuff, double-locked the cuffs to prevent any tightening of the cuffs, and quickly patted Plaintiff down for weapons. (5) Special Agent Hawkes then escorted Plaintiff out of danger, through the gate, and handed him off to another agent.
17. At no time did Agent Hawkes ever put a gun to Plaintiff's head.
18. It is not a generally accepted police practices to hold an unholstered weapon while searching or handcuffing a person because it poses a danger of the weapon unintentionally discharging and/or the subject gaining control of the officer's gun.
19. It is also not a generally accepted police practice to hold an unholstered weapon while handcuffing a person because it is nearly impossible to handcuff a person with one hand.
20. It is not a generally accepted police practice to hold a gun to a subject's head because it increases the likelihood of the weapon unintentionally discharging and/or the subject gaining control of the officer's gun.
21. Out of concern for Plaintiff's safety, as well as the safety of Special Agent Hawkes and the other agents at the scene, Special Agent Keith Boden -- also in split-second fashion and consistent with his training -- provided cover for Plaintiff and Special Agent Hawkes while Special Agent Hawkes was approaching, handcuffing and escorting Plaintiff away from the zone of danger. In doing so, and consistent with generally accepted law enforcement techniques, Special Agent Boden's weapon was out of its holster and pointed at the house in a low ready position.
22. While Special Agent Hawkes was handcuffing Plaintiff and Special Agent Boden was providing cover for Plaintiff and Special Agent Hawkes, Plaintiff, Special Agent Hawkes and Special Agent Boden were still located in a sensitive and dangerous location between the Tekle residence and the line of armed cover agents with weapons directed toward the residence. As such, Special Agent Hawkes took action consistent with generally accepted law enforcement techniques that would most efficiently and effectively minimize the threat Plaintiff posed to himself and the other agents present at the Tekle residence.
23. Even after Plaintiff was searched and found not to possess any weapons, Plaintiff still posed a risk to the officers' legitimate execution of the warrants because of his proximity in time and location to the extremely dangerous activity of executing the warrants against a highly dangerous and potentially armed suspect. Moreover, Plaintiff posed a risk to his own safety if during this critical time he attempted to approach the house or re-enter the premises as he had already once endeavored.
24. In the interim, other agents -- including Special Agent Jankowski, one of the team leaders -- proceeded to knock at the door. In response to Jankowski's cell phone call, Plaintiff's father came to the door and was arrested and handcuffed.
25. Once Plaintiff's father was arrested and handcuffed, agents continued with their sweep to secure the residence and within approximately 10-15 minutes, sounded an all-clear.
26. Consistent with generally accepted law enforcement practices and techniques, Plaintiff was immediately released from the handcuffs once the house was secured and declared "all clear."
27. Plaintiff suffered no physical injuries from the handcuffing and never sought any medical attention for any alleged injuries.
28. Plaintiff was handcuffed for no longer than a total of approximately 15-20 minutes.
29. After Plaintiff was released from the handcuffs, Plaintiff was taken to the garage area while the residence was being searched, seated on a stool for a short period of time and then escorted into the house to watch television until family members arrived to take custody of Plaintiff.
30. No weapons were pointed at Plaintiff while he was watching television and waiting for his relatives to take custody of him.
31. Plaintiff's mother, Lily Tekle, requested that the Agents call relatives to take custody of Plaintiff rather than turning him ...